2216655 (Refugee)

This matter concerned the cancellation of a protection visa granted to the applicant, who arrived in Australia in November 2011. The applicant was granted a Protection (subclass 866) visa in August 2012, based on claims of persecution in Iraq due to his stateless Bidoon status. The Department of Home Affairs later issued a Notice of Intention to Cancel Visa (NOICC), alleging non-compliance with section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect information in his visa application regarding his citizenship at birth and the reasons for leaving Iraq. The delegate ultimately cancelled the visa, finding that the applicant was an Iraqi citizen and not stateless as claimed, and that his travel to Iraq in 2014 contradicted his fears of persecution.

The core legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Act by providing incorrect answers in his visa application, and if so, whether his visa should be cancelled. This involved determining the applicant's true citizenship status at the time of his visa application and assessing whether his stated fears of persecution were genuinely held and supported by evidence, particularly in light of his subsequent travel to Iraq. The Tribunal was required to consider the applicant's claims of being a stateless Bidoon, the evidence presented by the Department regarding his alleged Iraqi citizenship, and the implications of his return visit to Iraq for his protection claims and Australia's non-refoulement obligations.

The Tribunal considered extensive evidence, including the applicant's original visa application, departmental records, country information on Bidoons, and detailed testimony from the applicant himself. The applicant maintained he was a Bidoon born in Kuwait, stateless, and that his family fled to Iraq where they were later granted Iraqi identity documents, which he argued did not equate to full citizenship or protection. He explained that these documents were obtained through a process involving sponsorship and declarations, and that he faced discrimination and lack of rights in Iraq due to his Bidoon status and Sunni Muslim faith. The Tribunal noted that the applicant had provided an Iraqi ID card and a marriage certificate with discrepancies, and had travelled to Iraq for his marriage in 2014. However, the applicant explained these discrepancies arose from the difficulties of obtaining accurate documentation in Iraq and his limited education. He also testified about the ongoing dangers in Iraq, particularly for Sunnis, and the impact of his mother's death and his divorce on his ties to Iraq.

Ultimately, the Tribunal found that the applicant had not failed to comply with section 101(b) of the *Migration Act 1958*. The Tribunal was not satisfied that the applicant had provided incorrect answers in his visa application. It was persuaded that the applicant's claims regarding his stateless Bidoon status and his fear of persecution in Iraq were credible, despite the evidence of his Iraqi citizenship documents and his travel to Iraq. The Tribunal set aside the delegate's decision to cancel the applicant's visa.